On January 17, 2012, the U.S. Court of Appeals for the District of Columbia vacated the UNCITRAL arbitration award in the arbitration between British Gas (“BG Group”) and the Republic of Argentina. The Court’s reasoning for vacating the award was that:

“Although the scope of judicial review of the substance of arbitral awards is exceedingly narrow, it is well settled that an arbitrator cannot ignore the intent of the parties. Where, as here, the result of the arbitral award was to ignore the terms of the Treaty and shift the risk that the Argentine courts might not resolve BG Group’s claim within eighteen months pursuant to Article 8(2) of the Treaty, the arbitral panel rendered a decision wholly based on outside legal sources and with regard to the contracting parties’ agreement establishing a precondition to arbitration.”

On July 27, 2012, BG Group petitioned the United States Supreme Court for a writ of certiorari to review the decision of the Court of Appeals. BG Group’s petition for a writ of certiorari was supported by the American Arbitration Association, the United States Council for International Business (the U.S. arm of the ICC), and a veritable Who’s Who of professors and practitioners of arbitration in the United States. On November 5, 2012, the United States Supreme Court asked the government about its view on the litigation.

Mr. Boykin will discuss the implications of the Court of Appeals’ decision on the question of who -- the courts or the arbitrators -- will decide questions of “arbitrability” under U.S. law.